Lack of sufficient legislation to ensure protection of journalists

Gongadze v Ukraine (Application No 34056/02)

Briefed on: 10 September 2018

  • Briefing notes by Olena Protsenko, Lawyer at the Centre for Strategic Litigation of the Ukrainian Helsinki Rights Union

  • Recent Rule 9.2 submission (Sept. 2018) by the Ukrainian Helsinki Rights Union on this case

  • Final judgment of the European Court of Human Rights (8/2/2006)

The case concerns the authorities' failure, in 2000, to protect the life of the applicant's husband. The latter, a journalist known for his criticism of those in power, had been threatened by unknown persons, before being abducted and found dead (violation of Article 2).

The case also concerns the lack of an effective investigation into this abduction and death since the State authorities were more willing to prove the non-implication of senior State officials than to uncover the truth (violation of Article 2). It also concerns the degrading treatment of the journalist's widow on account of the attitude of the investigating authorities (violation of Article 3) and the lack of an effective remedy in respect of the ineffectiveness of the investigation and the unavailability of compensation (violation of Article 13).

In her briefing, Ms Olena Protsenko, Lawyer at the Centre for Strategic Litigation of the Ukrainian Helsinki Rights Union, stated that, with regard to general measures, positive achievements had been reached through the introduction of four new corpus delicti into the Criminal Code of Ukraine. She underlined though that this legislation would only concern – and thus protect – journalists belonging to a certain mass media or a journalist association, and therefore not bloggers or non-professional reporters. In addition, the Ukrainian legislation only applies in cases where criminal proceedings are already open, and does not operate on a rapid response basis to ensure active protection of journalists. With regard to investigation, Ms Protsenko highlighted the lack of effective investigations, and the victims’ inability to access the criminal files during the pre-trial investigation.

Ms Protsenko put forth several recommendations to support implementation of this case, starting first and foremost with the need to adopt a broad notion of media which encompasses all media actors, and to create emergency protection remedies for journalists at risk and their families. She also called for the creation of special investigative units with specialised expertise and methods of investigation for police officers investigating crimes against journalists.